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US IMMIGRATION UPDATES
IMMIGRATION / 01 MAR 2000 |
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Employment-Based Adjustment Applicants |
By Vanessa S. Barcelona
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Many
of you may be all-too familiar with this scenario: The
adjustment of status application was filed quite some time ago,
on the basis of an approved I-140 petition filed by your
employer a few years back. While the application for adjustment
is pending, you find a better job offer, or the relationship
between you and your I-140 petitioner sours. |
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Because you have a pending adjustment case, you are granted
work authorization. With that card, you work for an employer
other than the employer whose approved petition is the basis
from which your pending application is based. Your
application for adjustment is still pending. What now?
Once the employment relationship has ended, the employer may
choose to, in the exercise of discretion, withdraw the I-140
petition. They may choose not to.
If withdrawn, however, then there is no basis for the
pending adjustment of status application and it can be
denied. If this is not done, then the I-140 beneficiary (the
principal adjustment applicant) may continue working with
authorization, while the adjustment is pending, and during
that time seek a different sponsor.
A new petition may thereafter be filed. As long as the
adjustment of status is not denied before a new I-140 is
approved, then the new I-140 petition can be used to support
a pending adjustment application. The new I-140 must be
approved before steps are taken, if any, to revoke (i.e.,
cancel) the previously approved I-140.
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Easier said than done? Not necessarily.
If you are a health care worker – a Nurse or a Physical Therapist –
you are allowed by the immigration laws to have an I-140 petition
filed on your behalf without going through the long and tedious
labor certification process.
An I-140 petition can take as little as 3 weeks (it has happened!)
to be approved. On average, however, it will be pending for
approximately 6 months. And if you are neither a nurse nor a
physical therapist? A change in the employer may not necessarily
mean the end of your hopes to obtain lawful permanent residency in
the U.S.
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However, you are placed in a precarious situation by the termination
of your employment. If you have a pending adjustment of status on
the basis of an approved application for labor certification, a
termination of the employment relationship may require that a new
labor certification application be filed. As many of you know, this
can take years and years — unless a new application is filed under
the expedited
The INS, through its Business Services Branch Chief, Mr. Thomas W.
Simmons, recently responded to an inquiry on the same subject. His
response is significant, as it offers guidance into the manner in
which the INS will treat this issue when adjudicating
employment-based applications for changes/extensions of status
and/or employment-based applications for residency. According to Mr.
Simmons, "An employee who remains on a company's payroll and
utilizes any temporary leave status (sick leave, annual leave, leave
without pay connected to legitimate necessities, etc)....would be
considered to be maintaining status."
Reduction in Recruitment program. Once approved, a new I-140 can be
filed. If it is approved before the pending adjustment of status is
adjudicated, then you need not file a new I-485, but may instead
proceed with the pending application for adjustment.
Note, however, that termination of the employment relationship need
not necessarily mean that a new application for labor certification
be filed. This is because the termination of employment with the
I-140 petitioner need not mean that the offer of employment is
withdrawn.
Just because you are no longer working for the I-140 petitioner, it
does not mean that you will not be working for them in the future,
say, after the adjustment of status is approved.
Remember, the entire employment-based adjustment of status process
is based on an "offer" of employment. It is true that more often
than not, an employer will not sponsor you unless you are already
working for them. But this is more the common scenario and not
necessarily the rule.
Thus, you need not be working for the petitioner in order to be the
beneficiary of an employment-based petition. You must, however, work
for them once the petition is approved.
Case in point: there are many beneficiaries of labor certification
applications who are outside the country. If so, employment with the
petitioner does not begin until they are interviewed by the U.S.
Consulate abroad and are able to enter on the basis of an approved
immigrant visa. If you are in the U.S., therefore, and were working
for the I-140 petitioner, and that employment has since terminated,
you may still proceed with the adjustment of status as long as it
can be proved, to the satisfaction of the INS officer, that you will
be returning to the petitioner, and that the intent to employ you
still exists. Note that this will be handled on a case by case
basis.
VANESSA S. BARCELONA is a partner with the law offices
of Barcelona & Pilarski, P.A. She obtained her law degree from the
University of Florida. She is a member of the American Immigration
Lawyers Association, the American Bar Association, and the Florida
Bar. Please send all e-mails to: vsbarcelona@earthlink.net
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